A Relational Understanding of Law Towards Marriage Dispensation

Muhamad Isna Wahyudi

chief judge at Banyumas Religious Court, Central Java

One of the ways to reduce child marriage in Indonesia is related to legal substance by the amendment of Marriage Law as the enforcement of Constitutional Court decision Number

22/PUU-XV/2017 date 13 December 2018. Law Number 16/2019 raises the minimum age of marriage to 19 years old for both males and females. However, there is still an exception to the provision by requesting dispensation from the court based on emergency reasons with sufficient supporting evidences, as stated in Article 7, paragraph 2.

According to the Supreme Court Case Tracking Information System, accessed 31 December 2023, there are 43.083 cases of petition for marriage dispensation heard by Religious Courts in 2023, the number decreases almost 10.000 cases from 2022 with total 52.395 cases. The request for marriage dispensation has been increasing since the enactment of Law Number 16/2019 on 15 October 2019, that raised the minimum age of marriage to 19 years old for both males and females. Court, as the last bastion, has significant role in dealing with marriage dispensation to reduce child marriage. However, most of the petition for marriage dispensation cases in 2023, 92,2 %, are granted by the judges, with total 42.907 disposed cases. The question arises is that why the court tends to grant most of the petition for marriage dispensation? This article tries to explain the law in action in relation to marriage dispensation using a relational understanding of law approach.

A Relational Understanding of Law

Nadia Sonneveld, assistant professor at Leiden University, Leiden, has introduced a relational understanding of law approach, in her article entitled “Male and Female Judges in Morocco Dealing with Minor Marriages: Towards a Relational Understanding of Family Law,” in Hawwa: Journal of Women of the Middle East and the Islamic World, Vol. 18, 2020, 162-193. This approach requires us to consider the rule of external recognition and the internal compatibility of law.

The rule of external recognition means that Law is law insofar as it is recognised externally by other legal systems. It leads to a situation where parts of a given normative system are either formally or informally incorporated in another normative system. In Indonesiancontext, the state law can operate effectively as long as it is recognized externally by other normative orders, including the living legal values in society. In the case of marriage, in Indonesian Muslim societies, marriage has become the prominent way to control sexual morality of its members, including unregistered marriage, and sexual relations outside marriage are strongly condemned. To safeguard the honor, families tend to control female sexuality in order to avoid pregnancy outside marriage. While according to customary law, a pregnant woman outside marriage is disgrace and she should be married with the man who impregnates her or with another man.

Another aspect needs to be considered is internal compatibility of a law (provision), within and between the various law fields of a given normative order. In this case, the provision of a family law is not in isolation but in relation to other family law provisions and other fields of state law. For instance, the reformed Indonesian Marriage Law provides an exception to deviate from marriageable age of 19 years old by requesting dispensation from the court based on emergency reasons with sufficient supporting evidences (Art. 7, p. 2), while the Kompilasi Hukum Islam permits to marry a pregnant woman by the man who impregnates her (Art. 53). In this case, there is internal compatibility when the emergency reason for marriage dispensation is pregnancy outside marriage, as the intention of legislator that can be inferred from the Elucidation of Article 7 paragraph 2.

Reasons for Marriage Dispensation

Based on AIPJ2 survey to 1073 decisions on marriage dispensation held in 2019, there are various reasons for requesting marriage dispensation to the court including pregnancy outside marriage 31 %, having sexual intercourse outside marriage 16%, having risk to sexual intercourse 4 %, loving each other 25 %, having risk to offense religious values 21 %, and having risk to offense social values 8 %. The result shows that the reason of pregnancy outside marriage becomes the dominant reason for requesting marriage dispensation, but the rest of reasons have the larger number (69 %). It means that judges have to deal with the large number cases of petition for marriage dispensation based on other reasons out of pregnancy outside marriage as the intention of legislator. How judges consider the non- pregnancy reasons will lead to the number of cases of petition for marriage dispensation granted by the judges.

Extensive Interpretation

While according to authentic interpretation of “emergency reasons with sufficient supporting evidences” (Elucidation of Article 7 paragraph 2 of reformed Marriage Law), pregnancy outside marriage is the solely reason for marriage dispensation, the judges employ extensive interpretation to extend the meaning of emergency reasons so that including other reasons. The extensive interpretation works by considering the realities in Indonesian society. It is in line with the provision that judge must trace, follow, and understand the legal values and sense of justice living in the society (Art. 5 (1) Law No. 48/2009). In this case, the rule of external recognition plays important role. Other normative orders including customary law, and sharia-based social norms are considered by the judges to extend the implementation of “emergency reasons” for marriage dispensation including other reasons in addition to pregnancy outside marriage, such as sexual relationship outside marriage, having risk to sexual intercourse, having risk to offense religious and social values.

As the result, most of requests for marriage dispensation are likely to be granted by the judges, and the aim of reformed Marriage Law to reduce child marriage has lower achievement. However, the increasing number of marriage dispensation has reduced the number of unregistered marriages. The dualism of marriage validity, according to religious law or state law, has opened the way for those who are not granted their requests for marriage dispensation to conduct unregistered marriage according to religious law, as other normative order. This ambiguity of law has also become another consideration for the judges in dealing with the requests for marriage dispensation.

*) Muhamad Isna Wahyudi is chief judge at Banyumas Religious Court, Central Java, and the

graduate of Postgraduate School at Sunan Kalijaga State Islamic University, Yogyakarta.